Every day, it feels more and more like we live in what comes very close to being an elected dictatorship.

Sen. Jeff Sessions (R-Ala.) asked the Secretary specifically, “Do you think you can act without Congress to initiate a no-fly zone in Syria?”

He was visibly quite taken aback when Panetta responded.

“Our goal would be to seek international permission, and we would come to the Congress and inform you and determine how best to approach this — whether or not we would want to get permission from the Congress…I think those are issues we would have to discuss as we decide what to do here.”

The defense secretary made it clear to the senator that the primary objective would be to first secure international approval for military action, and then tell the Congress what they might decide to do, after which the administration would consider asking for congressional approval.

After Sessions expressed his complete dismay at the secretary’s clear intent to exclude Congress, which possess sole constitutional authority to declare war, from the decision making process, Panetta defended his position.

“I’ve also served with Republican presidents and Democratic presidents who always reserved the right to defend this country if necessary.”

Secretary Panetta correctly asserts that every president has rightfully reserved the authority to defend this country, if necessary. But I would also argue that a no-fly zone, or any other offensive military action in Syria, is far from necessary to defend the United States.

As might be expected, there was no shortage of criticism from Republicans, much of it aimed at the administration for seeking international permission rather than the president usurping Congress’ constitutionally delegated war powers. I won’t name names, but many Republicans, who either pretended to be outraged or were genuinely upset, had no issues at all with previous Republican administrations using the military for offensive wars without prior permission from Congress.

But that’s another article…

Frankly, what surprises me is not Panetta’s claim that the president has unlimited authority to wage war without Congressional approval. Lots of presidents, both Republicans and Democrats, have claimed that authority, at least since Truman’s decision to intervene in the Korean War without consulting Congress. What surprises me is that anyone in the Obama administration still feels obligated to provide any kind of legal cover.

Yet Secretary Panetta did bother to offer a up a fig leaf, asserting that the president has the right to defend this country without obtaining prior permission from Congress. I do think it is worth analyzing this statement, since it can illustrate something about what powers the Constitution actually delegates to the federal government when it comes to waging defensive war.

So was Panetta correct about a president’s right to defend this country without permission from Congress?

The Short Answer is, yes.

I’m unaware of any reliable constitutional scholar who would deny that the president is empowered by the Constitution to repel an invasion of U.S. territory. In their book, Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush, Kevin Gutzman and Tom Woods explain the Framers’ intent.

“Although the Constitution withholds from the president the power to commence hostilities, the Framers did envision a defensive presidential power to respond to attacks in extreme cases that will admit of no delay.”

However, equating the initiation of a no-fly zone, air strikes against foreign military targets, or the commitment of ground forces, however small or covert, in a country located on the other side of the planet with “defending” our country is simply “rhetorical nonsense — nonsense upon stilts.”, as Jeremy Bentham once described a different set of ideas I happen to embrace.

Even if the Assad regime, or the insurgents who might overthrow it, presented a clear and present danger to the United States, that would hardly justify military action without a declaration of war from Congress. As Kevin Gutzman and Tom Woods pointed out in the same chapter of their book, “Even when Japan attacked Pearl Harbor in 1941, President Franklin Roosevelt did not retaliate on his own authority but went to Congress for a declaration of war.”

There is no constitutional basis whatsoever for engaging in offensive warfare unless the decision to do so is made by Congress. For a more detailed examination of this question, I highly recommend reading constitutional scholar, Robert G. Natelson’s article, “Obama’s Libyan Operations are Unconstitutional”. His piece systematically dismantles the flimsy arguments of those who would try to portray Obama’s actions in Libya as somehow “less than war”, or an attack on Syria as a defensive operation.

Even though it appears that U.S. military action in Syria may be off the table for now, it’s still important to examine the arguments surrounding this conflict and previous ones as well. When arguments are made in support of unconstitutional wars in the future, those of us who wish to support and defend the Constitution can be better prepared to explain and articulate the very limited war powers delegated to the executive branch, in order to educate others who may still be on the fence.

What Do We Do About it?

And for those who do still care about the Constitution and the rule of law, the next question must be, “What then do we do about it when those in power simply refuse to abide by the Constitution?”.

I’m personally convinced that the internal checks and balances built into the federal government broke down long ago and are, for all practical purposes, useless at this point in history. The three branches of the federal government conspire to usurp more power at least as often as they act to limit each other’s power. That’s why many concerned citizens, frustrated by the failure of elections to arrest the progress of tyranny year after year, insist that there’s just going to have to be a revolution at some point. But the federal system established by the Constitution provides at least one final structural protection against tyranny that does not involve popular resistance, secession or full scale revolution. That protection comes from the power of the states.

In his “Exposition of the Virginia Resolutions of 1798”, Judge Abel P. Upshur asked the question, “Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?”

I certainly believe that there is such a conservative principle in the Constitution, otherwise I would not be writing this. And thankfully, the Tenth Amendment Center has been providing model legislation for several years, specifically designed to help state legislators make use of that conservative principle, otherwise known as state nullification.

But can state nullification provide an effective check against an out of control president determined to wage unconstitutional wars? I certainly believe it can. But in order to work, it requires the people of the several states to shift their focus from Washington, D.C. to their state capitals.

Defend the Guard legislation is designed to reassert the authority of governors over their Army and Air National Guard troops. Many people are unaware of the enormous role played by Army and Air National Guard in overseas military operations, without which the occupation of countries such as Iraq and Afghanistan would be virtually impossible.

Constitutional Homeland Security

Under the Constitution, the organized militia (now called the National Guard after the 1903 Dick Act) may only be called into duty by the federal government in three specific situations. According to Article I, Section 8; Clause 15, the Congress is given the power to pass laws for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

The organized militia was intended by the Founders and Ratifiers to be defense force and nothing more. Deployments outside the country were not considered, and neither were internal deployments in pursuance of powers that were not delegated to the federal government.

Congress has passed numerous laws in the past 100 years giving the federal government additional authority not mentioned in the Constitution. But without amendment, altering the enumerated powers by legislative fiat is, in and of itself, unconstitutional. Campaigns in states around the country are working to reassert the authority of governors over guard troops.

Become a member and support the TAC!

But that’s not all. Other state nullification bills designed to limit the power of the presidency have been introduced as well. The Liberty Preservation Act, for example, is a state-level response to constitutional violations in the National Defense Authorization Act of 2012.

In many ways, resistance to executive usurpation and tyranny has just begun at the state level. But make no mistake, the struggle is on, and it mustn’t cease. Rather, it must be escalated. Because as much as many of us would like to believe that Congress will suddenly grow a spine, or that the federal judiciary will rein in the imperial presidency sometime soon, such a hope is unrealistic at best.

The states on the other hand, haven’t been completely subordinated, and it’s through them that We the People still have a chance to prevent Caesar from completing his crossing of the Rubicon.

Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center.His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification.His blog and podcast "Principles of '98" can be found at www.PrinciplesOfNinetyEight.Com.View his Tenth Amendment Center blog archives here, and his article archives here.

52 thoughts on “Executive War Powers Have Strict Constitutional Limits”

Madmen make decisions too and since no act takes place without one of these it is certainly worth viewing. Madmen encompass ideas of other madmen and they all decide all ideas and all efforts shall be used for such a purpose. Since they are no more than you are the idea they create on authority is also a created idea and decision is it not?

What idea do these madmen support? The rise in Rule way of life, or control and authority over it. Yep I can make this same stupid idea up all on my own but it does not make it a good idea at all, yet we see it displayed day after day with not one bit of opposition to such and extreme. I ask what is it that truly is missing?

Good choice makers, yep, where are you and what ideas are you supporting and using to decide with? Which direction or way of life are you working towards? Show me.

Last I read, understood, inspected, evaluated and fully discovered there is one document of truths that gave me all the important details for which to Decide with to make great decisions. Not only for the Constitution but for a Republic way of life (as in Community way) which today is not at all in any form or in any community. This is the Declaration of Independence is our foundational choice making tool. Since all life is able to do this act it should be important to recognize ourselves for these capabilities. Yet today as I write and ask these questions not one will answer this to themselves and most will go (what is he saying?).

When sane men (opposite of madmen) do not utilize the proper tools built by our founders and get coerced into believing the Rule way of life ideology do we see our way of life disappear. History has been very revealing of this fact and the Declaration of Independence is by far the most genuine piece of work in all of time leading up to it. No other idea or document put forth so much genuine truth for which to USE in decision making ever and it is not utilized still on this day but by a very few.

The madman’s strength is the numbers supporting their poor ideas with their own ideas and their own decisions all mounting up to be the force we view every single day. The Sane mans weakness is simple, there are no numbers at all thus its very own defeat. Madmen have no constitution in which decision is made and sane men do. Madmen have no Declaration of Independence but sane men do.

Madmen have the idea of Rule by wealth and power and implement these ideas everywhere and sane men are supposed to have the idea of Republics and life and achievements to promote such an activity and there is a very clear separation if you really look for yourself. It is a visual that does not go away when you discover it and that separation is simply this;

The Rule way of life is control and power over life to abuse and use it what ever way it likes and prefers stealing. The ideas that support it are wealth, power, Law, taxes and secrecy.

The Republic way of life has the Declaration of Independence with Life, Liberty and the pursuit of happiness to support it with a Constitution to support the idea of liberty (to be free from these madmen).

This is a clear line of decision one could make in distinction and review and evaluation and could be noted as the deciding factor or dividing line for each direction or each way of life and this clarity, this choice, this determination is only yours to take because madmen are mad in their own minds, in their own thinking and ideas backed up by very poor choices that are viewable by the activities and the results of such choice making. This is because nothing takes place without choice, not one thing. So maybe we should sit down and review our own strengths as well our own weaknesses.

Brought to you by A Producing American where review is what I do to determine which direction I shall go. Let us learn to say goodbye to madman approaches by the great choices we learn to make for ourselves.

A very short nullification of Paneta’s justification is the 5th amendment which states that no PERSON shall be deprived of life, liberty, or property without the due process of law. The keyword is person because person includes citizens and non citizens residing within the boundaries of the United States and people residing within the boundaries of other countries. An executive order taking away any human beings life, liberty, and property is simply in violation of the 5th amendment’s due process clause.

Our complacency, and gullibility as a nation has lead to the genocide of countless innocent men, women, and children at the hands of the democidal federal regime. Hundreds of years from now the United States may very well be known as the greatest instrument of death ever seen. We are all indirectly responsible for countless millions of deaths whether it be our own troops, or foreigners who died in a plethora of unnecessary offensive wars. The Federal serial killing regime will not quit until they control the planet via puppet regimes, and then from there they will continue to exterminate populations they see as a threat to their power. This government only gets bigger, and more homicidal with each passing year. The logical conclusion to that trend is in fact the termination of a good portion of humankind, and global tyranny that will never be broken because there simply won’t be enough of us left to stop it. The blood of past millions, and perhaps future millions of deaths are on all of our hands.

He’s dangerous! Almost as dangerous as the President — only difference is the level of authority! The cabal in Washington these days has no respect for our Constitutional Republic. They consider the Constitution’s controls to be a nuisance to be ignored.

He’s dangerous! Almost as dangerous as the President — only difference is the level of authority! The cabal in Washington these days has no respect for our Constitutional Republic. They consider the Constitution’s controls to be a nuisance to be ignored.

Several times, Panetta has taken an oath to support and defend the Constitution against all enemies, foreign and domestic. His testimony to Congress indicates that he may be one of the Constitution’s enemies.

Several times, my own senior snator, Orrin Hatch (R-UT), has taken the same oath to support and defend the Constitution against all enemies, foreign and domestic. He has voted to confirm hundreds of presidential nominees who are known enemies of the Constitution — including Panetta as Secretary of Defense. In doing so, Hatch has thus indicated that he also may be an enemy of the Constitution.

We need smarter voters — voters who have studied the Constitution and who understand what our nation could be if that document were followed and who can see that all our national, state, and even local problems can be traced to our collectively ignoring the Constitution.

Several times, Panetta has taken an oath to support and defend the Constitution against all enemies, foreign and domestic. His testimony to Congress indicates that he may be one of the Constitution’s enemies.

Several times, my own senior snator, Orrin Hatch (R-UT), has taken the same oath to support and defend the Constitution against all enemies, foreign and domestic. He has voted to confirm hundreds of presidential nominees who are known enemies of the Constitution — including Panetta as Secretary of Defense. In doing so, Hatch has thus indicated that he also may be an enemy of the Constitution.

We need smarter voters — voters who have studied the Constitution and who understand what our nation could be if that document were followed and who can see that all our national, state, and even local problems can be traced to our collectively ignoring the Constitution.

ALL of these Democrats in office have taken oath to defend CONSTITUTION, none do, example-see the black congressman going to COMMUNIST Party headquarters to get his AWARD from them. When caught and questioned, he did his “no Comment” and scrambled for his car. DID YA HEAR ABOUT THIS IN NEWS THIS WEEK? MAXIN WATERS saying or slipping about her “socialist” utopia and how they are going to MAKE us do it their way………..

ALL of these Democrats in office have taken oath to defend CONSTITUTION, none do, example-see the black congressman going to COMMUNIST Party headquarters to get his AWARD from them. When caught and questioned, he did his “no Comment” and scrambled for his car. DID YA HEAR ABOUT THIS IN NEWS THIS WEEK? MAXIN WATERS saying or slipping about her “socialist” utopia and how they are going to MAKE us do it their way………..

YOU are SO RIGHT ON Blaine Nay,and points to the MANY duped politicians and voters who cannot see the facts,that presiDUNCE Obama said,and aspires to be president of the world ! Does anyone see the anti-christ in his aspirations !

YOU are SO RIGHT ON Blaine Nay,and points to the MANY duped politicians and voters who cannot see the facts,that presiDUNCE Obama said,and aspires to be president of the world ! Does anyone see the anti-christ in his aspirations !

Leon Panetta is a real disappointment. He turned out to be a real loser for OUR country’s safety. Him and the whole Obama administration need to go and so should some of the Republicans that subscribe to this garbage.

Leon Panetta is a real disappointment. He turned out to be a real loser for OUR country’s safety. Him and the whole Obama administration need to go and so should some of the Republicans that subscribe to this garbage.

Wish there was something we could RIGHT NOW to stop there treasonous acts from going any further. Saying ” wait til the next election, may be too late. Sometimes the damage is already done. I don’t think they had a big , long drawn our affair when B. Arnold was found a traitorous.

During the debates in the Federal [Constitutional] Convention of 1787, a draft of the proposed constitution contained a provision granting Congress the power “to make war.” A separate proposal to vest this power in the president was debated and rejected. It was asserted that a president should not have the power to initiate war because he could not be trusted with such a power. In addition, a proposal to substitute the word “declare” for “make” was agreed to unanimously. Thus, the constitutional power to initiate or declare war, as this article states, was vested solely in the Congress.

Enjoyed reading your article. AS for the Dick Act, my reading of Edwin Vieira’s work, a constitutional lawyer and writer on the militia in the constitution, differs from your interpretation regarding the federalization of the militia. The militia, having existed for some 150 years prior to the Constitution remains a local creation for local issues that can be called up at state and then federal levels as needed by the President. The National Guard is a beast of another color, similar to, but not the same creature, but a new creature, painted over to look like, but is not the constitutional militia as defined. It is a hybrid, made out of new cloth. It was, my words, a progressive movement to steal the concept and create a federal beast, to usurp the intent of the concept for solely federal reasons. It was yet another theft of the word or concept of the millitia. Called verbicide, the pro-state folk stole the idea, but Dr. Vieira’s work shows that the Constitutional militia is a local phenomenon, under the state governor and, can be called on by the President, but is not a ‘given’ that the governor would abide, again my thoughts, as the purpose of the militia is local action, not distant action for frivolous fear mongering wars on terrorist, another verbicidal word creation. Terrorism is a tactic not a noun. Any way, as defined by the FBI and the feds, all of us are terrorist for speaking out!!

Enjoyed reading your article. AS for the Dick Act, my reading of Edwin Vieira’s work, a constitutional lawyer and writer on the militia in the constitution, differs from your interpretation regarding the federalization of the militia. The militia, having existed for some 150 years prior to the Constitution remains a local creation for local issues that can be called up at state and then federal levels as needed by the President. The National Guard is a beast of another color, similar to, but not the same creature, but a new creature, painted over to look like, but is not the constitutional militia as defined. It is a hybrid, made out of new cloth. It was, my words, a progressive movement to steal the concept and create a federal beast, to usurp the intent of the concept for solely federal reasons. It was yet another theft of the word or concept of the militia. Called verbicide, the pro-state folk stole the idea, but Dr. Vieira’s work shows that the Constitutional militia is a local phenomenon, under the state governor and, can be called on by the President, but is not a ‘given’ that the governor would abide, again my thoughts, as the purpose of the militia is local action, not distant action for frivolous fear mongering wars on terrorist, another verbicidal word creation. Terrorism is a tactic not a noun. Any way, as defined by the FBI and the feds, all of us are terrorist for speaking out!!

As I have observed there are two elements keeping us from real elections: 1) voter fraud 2)television. It is nothing short of amazing how so many voters abide by what they are told on television. I get most of my news from the internet in sites such as this but I often see in chat rooms arguing about issues that were presented on television. The issues and the people chosen for us by television is the main problem. Because corruption cannot survive in a system where everyone knows the truth.
The Federal Reserve hand out 16 trillion dollars to foreign and domestic corporations, the constant pitching for wars abroad: Libya yesterday, Syria today: Iran tomorrow. it is clear that we are following someone else’s agenda. Most of the money in this country is created by private commercial banks. So I ask how can we fight back. The answer is that we must instill in everyone the reality of the fact that television has owners and those owners have an agenda that is contrary to your personal interest of liberty and economic freedom. We need to keep repeating a mantra: The news on television is bogus and it is there to manipulate you. Say it many times, and repeat it. Repeat when someone calls you a conspiracy theorist, or a radical. Repeat it until every household knows it as a fact. The Television has you.

Under the 2nd Amendment the militia is “necesssary”.The Constitution provides for the army and navy.As pointed out the militia is to be called out for insurrection,invasion,or to enforce the laws of the Union.
How was it possible then that the “state militia” became the national guard? There is no authority to do this under the Constitution.
It seems that the The Militia Act or Dick Act is unconstitutional in my opinion.It has also been charged that it took the militia out of the hands of the Governor less he use it for agression.The same argument can be turned and stated what is to keep the federal government from turning against the now defenseless states and use military for agression.The States now have no militia which under the Constitution they can have necessariy for them to maintain their freedom. And I ask against whom.Certainly not from other States but the Federal Government. This insurance was taken away with the Dick Act under false pretenses.This was another sleezy ploy to take away States Rights beginning over a century ago and even earlier.
It would seem the creation of a National Guard from the State Militia is a ruse to take from the states their militia.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,
The word necessary carries significant weight. It was for the security of the State not for being sent oversees.
Congress is to provide for
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; There is no authority to nationalize since we have an army and navy and need protection at home.
If this Dick Act is unconstitutional then the Governors,if they have the nerve,can prevent this.And if they don’t have the nerve to prevent at leasst expose this ruse for what it is on a wholescale and frontal attack.
There is no national guard but the state militia which doesn’t have to comply at all with this act.

Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center.His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification.His blog and podcast "Principles of '98" can be found at www.PrinciplesOfNinetyEight.Com.View his Tenth Amendment Center blog archives here, and his article archives here.